Swirsky and Monaco: Is the National Labor Relations Board at a Turning Point?

Labor News

Reprinted from The National Law Review by Steven Swirsky and Laura Monaco on December 25, 2016.

“The National Labor Relations Board (“Board”) has been quite active in the waning days of the Obama administration. The Board issued a number of decisions addressing key issues in the second half of President Obama’s final year in office,” write Steven Swirsky and Laura Monaco in The National Law Review. “While the lasting impact of some or all of these decisions in the wake of Donald Trump’s election is presently uncertain, it is almost certain that the Board’s Democratic majority under the Obama administration will not survive, and that President-elect Trump’s appointments will give rise to a Republican majority in the near future. Indeed, two of the five seats on the Board are presently open, and with the terms of both Member Philip Miscimarra, who is a Republican, and General Counsel Richard Griffin set to expire in 2017, President-elect Trump will soon have the opportunity to use his appointment powers to change drastically both the composition of the Board and its litigation and enforcement priorities. It can be expected that a new Board, with a Republican majority, will likely reexamine decisions of the Obama Board on a wide range of issues, including the Board’s decisions that found class action waivers and requirements that employees arbitrate (rather than seek relief in the courts for wage and hour and similar claims) to be unenforceable, and that redefined the standards for finding joint-employer relationships, as well as other decisions seen as ‘pro-union’ or anti-employer. …